Jeter and Jeter

[2013] FCCA 632

FEDERAL CIRCUIT COURT OF AUSTRALIA

JETER & JETER [2013] FCCA 632

Catchwords:
FAMILY LAW – Property – where wife has disposed of a large proportion of the asset pool and yet to fully explain how the monies received by her were expended – where wife lives in USA – where husband seeking payment of large sum of money on an interim basis – where no such sum exists in any disclosed form – where only sum exists is from sale proceeds – where husband living in sole remaining real property – where wife wants that property sold – where wife wants some of sale proceeds of that property as well as existing sale proceeds on an interim basis – where both parties seeking monies to pay legal costs – where husband wants to remain in property as may be able to keep the property as part of the property division – Held that neither party is to receive any monies as existing sale proceeds need to be preserved as part of the property pool – where remaining property is not to be sold and needs to be preserved – where husband can remain in property provided he pay all outgoings – where matter listed for an early hearing as mediation not achievable where there are so many disputed facts and where property pool difficult to ascertain.

Legislation:
Family Law Act 1975 (Cth), Part VIII, ss.75(2), 79

Applicant: MR JETER

Respondent: MS JETER

File Number: BRC 7657 of 2011

Judgment of: Judge L. Turner

Hearing date: 6 June 2013

Date of Last Submission: 6 June 2013

Delivered at: Brisbane

Delivered on: 13 June 2013

REPRESENTATION

Counsel for the Applicant: Ms Carew

Solicitors for the Applicant: Collas Moro Ross Solicitors

Solicitors for the Respondent: Bell Legal Group

ORDERS

THE COURT ORDERS BY CONSENT:

1. That Orders 10, 11, 12, 13, 14 and 15 of the interim consent orders dated 31 January 2013 in respect to mediation are hereby discharged.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the Husband have exclusive occupation of the premises situated at Property B in the State of New South Wales.

2. That the Husband is responsible for all outgoings on the Property B property, including but not limited to, the rates, building and contents insurance, electricity, gas and telephone.

THE COURT ORDERS:

1. That this matter be listed for a two (2) day hearing commencing at 10:00am on 21 October 2013.

2. That this matter be listed for mention and the making of trial directions on 5 September 2013 at 9:30am in the Federal Circuit Court of Australia at Brisbane.

3. That pending the next mention date neither party is to file an Application in a Case or further Affidavits except in the event that the value of the property pool is in danger of being depleted.

4. That the proceeds of sale of Property A are to be invested in joint names of the parties with neither party to have access to the funds unless otherwise ordered by the Court.

5. That the issue of costs be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Jeter & Jeter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 7657 of 2011

MR JETER

Applicant

And

MS JETER

Respondent

REASONS FOR JUDGMENT

Ex-tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. The parties, after a very long marriage, are now in dispute as to a property division. 

2. On the face of the documents, this is a small pool.

3. But early resolution of this matter will be difficult due to a large number of complicating factors.

4. Some of the main factors which impact on this matter are as follows:

   a)The parties have been physically separated for over two years.

   b)The actual date of separation is in dispute. 

   c)The validity of divorce appears to be in dispute. 

   d)The wife has re-partnered and is living in America and to date has not attended any Court events although is legally represented.

   e)The wife, without full knowledge or consent of the husband, has cashed in substantial superannuation amounts which were accumulated during the marriage. 

   f)The wife, without full knowledge or consent of the husband, has sold most of the real estate that was acquired during the marriage.

   g)The wife, despite her several affidavits, has failed to properly account for the moneys received from both the drawing down of the superannuation funds and the sale of the real properties.  The amount not properly accounted for runs into hundreds of thousands of dollars. 

   h)The wife has yet to provide full disclosure. 

   i)The wife has not lodged tax returns since 2011. 

   j)The wife has failed to properly explain her living and financial arrangements in America. 

5. This is by no means an exhaustive list.

6. An undertaking and full investigation into the facts as to the true financial positions of the parties and in particular, the financial dealings by the wife since separation is, at an interim hearing, impossible.

7. The parties have requested by consent that previously ordered mediation be dispensed with and that this matter proceed directly to a two day hearing. 

8. I agree. 

9. Medication is likely to be highly ineffectual where so many facts are in dispute and where there are so many gaping holes in the financial history since separation.

Issues

1. It is against this background that I am asked to consider the following issues on an interim basis. 

2. The husband is seeking payment from the wife of $93,989 and an order for the exclusive occupancy of the only remaining real property, which is at Property B in New South Wales.

3. The wife states that payment of any moneys cannot be made as no such sum exists and that the Property B property needs to be sold. 

4. The wife does not seem to have an issue about the husband remaining at Property B although she has concerns about who is going to pay the outgoings pending the sale of the property.

5. In considering these issues I have had regard to:

   a)the material as marked on the Court file;

   b)the oral and written submissions of the parties; and

   c)Part VIII Family Law Act 1975 (Cth).

6. Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.

What monies, if any, are to be received by the husband from the wife? 

1. The current pool available for distribution is:

   a)the unencumbered Property B property which is yet to be valued but is thought to be worth somewhere between $200,000 and $300,000;  

   b)some motor vehicles;

   c)some small bank accounts; and

   d)the balance of proceeds of sale from the Property A property of some $26,000.

2. Nowhere in the material are there any large sums of money available for distribution. 

3. Whilst I appreciate the husband’s frustration in not knowing how the superannuation moneys and the proceeds of sale have been utilised by the wife, the reality is that an order for payment of any large sum of money, where there is no such sum readily available, is a fruitless exercise.

4. The only sum available is the balance proceeds of sale from the Property A property. 

5. The wife argues that the money should not be released to the husband as the husband has already had the benefit of $50,000 pursuant to Order 4(c) in the interim consent orders reached on 31 January 2013 and that, in any event, the money should be released to her to meet her legal fees.

Conclusion

1. Because of the small size of the pool and because the wife is yet to provide full details as to the distribution of the moneys that have been available to her since separation, I am not prepared to release the balance moneys from the sale of the Property A property to either party.

2. The remainder of this pool requires preservation and as the trial will be conducted in October this year then the parties do not have long to wait before determination of this matter. 

3. As to the argument that moneys are needed by both parties to meet their respective legal costs, then with the size of the pool and numerous issues, it is up to the parties to decide whether or not they can afford legal representation and it is up to the legal practitioners to decide whether or not they can carry the clients until the completion of the hearing. 

4. To further deplete the pool by cash distributions, however, is just not an option.

What is to happen with the Property B property?

1. The husband has been living at the Property B property for several weeks now since the sale of the Property A property. 

2. The property is in the wife’s name and has a caveat registered over it by the husband.  The property is unencumbered. 

3. The parties agreed in the January 2013 interim orders for the property to be sold subject to the parties providing written consent. 

4. The husband is no longer wanting to sell the property as he wishes to remain in the property pending the hearing and if possible would like to retain the property as part of the property division.

5. The wife wants the property sold and for her to receive some $23,000 towards her legal costs and for the balance to be held in trust pending determination of the matter. 

6. Further, the wife claims that she does not have the capacity to meet the costs of maintaining the Property B property.

Conclusion

1. I find that, as the Property B property is the major asset that makes up the matrimonial pool, then this asset needs to be preserved for the purposes of the hearing. 

2. As the property is being occupied by the husband, then the husband is in a position to meet all outgoings on the property.

Future direction of the matter

1. The conduct of this matter to date, where there is such a small pool, causes me great concern. 

2. Several affidavits and applications in the case have yet to be successful in determining firstly, how the moneys received by the wife for her superannuation payouts and the sale of properties have been distributed and secondly, as to what is the extent of the pool. 

3. The size of the file indicates that substantial legal costs have already been borne by each party. 

4. The reality is that the pool, even with the possible add-backs, will still be small and certainly is unlikely to provide sufficiently for either party to, after such a long marriage, enable them to re-establish themselves.

5. This matter is listed for a two day hearing on 21 and 22 October 2013 with the matter to be mentioned in early September 2013 for trial directions. 

6. No further applications in the case are to be filed. 

7. No further affidavits are to be filed pending the trial directions. 

8. Any outstanding issues, such as lack of disclosure, will be discussed at the next mention date.

9. Costs are reserved.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Associate: 

Date:  25 June 2013